MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

WAHT v Minister for Immigration [2002] FMCA 368 (12 December 2002)

MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

(2) The applicant pay the respondent's costs fixed in the sum of $4000.

IT IS CERTIFIED THAT:

(3) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH

WZ173 of 2002

WAHT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment.

2. The matter proceeds in this Court following an order that it be transferred into the Federal Magistrates Court of Australia, that order being made on 13 August 2002 by Carr J. The applicant filed his application for a protection visa on 11 November 2001. In that application the applicant asserted that:

a) he was a citizen of Afghanistan, a Pashtun and his religion was that of Sunni Muslim;

b) there was a vendetta between his family and another village family from many years before and the other family had high ranking members in the Taliban;

c) the applicant's father had been taken away and tortured by the Taliban, resulting in injuries which caused his death. The applicant and his brother had been in hiding since then;

d) the applicant's brother was taken by the Taliban who also tried to take the applicant and when he refused he was beaten; and

e) the applicant then escaped Afghanistan with the help of a smuggler.

3. In a further statement in support of his application of 17 February 2002 the applicant addressed the current situation in Afghanistan with the fall of the Taliban claiming:

a) the Taliban was still in his area;

b) he feared persecution by the Taliban for having been to a non-Muslim western country;

c) his father during his lifetime had been accused of joining the Northern Alliance and as his son he would be considered an enemy of the people in his area; and

d) the son of a former governor in the area, Nasrullah, was now in power and would be aware of his family and the accusations made against them.

4. Submissions filed on behalf of the applicant claimed the situation in Afghanistan to still be in a state of flux and presenting a continuing danger for persons returning (at 48-54 of the Court book). The delegate refused the application for a protection visa.

5. On 11 April 2002 the applicant applied to review the decision of the delegate. On 28 June 2002 the Refugee Review Tribunal affirmed the decision of the delegate to not grant a protection visa (Court Book,

p. 109-126).

6. The Tribunal accepted that the applicant was a citizen of Afghanistan and that the Taliban had persecuted the applicant and members of his immediate family. The Tribunal did not accept however that:-

(a) the applicant feared persecution from the relatives of Nasrullah;

(b) the applicant had a well-founded fear that he would be persecuted in his home province by remnants or former supporters of the Taliban; and

(c) the applicant's brother had been taken away and tortured or that people from the government had been asking the applicant's mother about him each day (see Court book, p.25). The Tribunal described the applicant's evidence that he faced harm from the Taliban or former Taliban supporters for a political reason or any Convention reason to be far fetched. The claims in the letter by the applicant's uncle were similarly described as being far fetched. The Tribunal accepted that the Taliban had been effectively eliminated as a political and military force in Afghanistan.

7. At the hearing before the Refugee Review Tribunal, submissions had been lodged on behalf of the applicant by AMPI; by Craddock Murray Newmann and by Amnesty International.

8. On 8 July 2002 the applicant filed in the Federal Court of Australia two applications for review of that decision. On 6 August 2002 those applications were consolidated with directions made as to the filing of further material. On 13 August 2002 the proceedings were transferred to this Court.

9. At the hearing counsel for the applicant sought to file an affidavit of the applicant together with an amended application for order of review and an affidavit of Paul Sherner, counsel for the applicant. No objection was taken to the late filing of this documentation which was relied upon by the applicant in the proceedings. Counsel for the applicant was acting in a pro bono capacity. The Court is appreciative of counsel for acting in such capacity and acknowledges its appreciation in these reasons.

10. Counsel for the applicant made three main submissions in the matter before me, two of them relating to procedural fairness and one relating to an argument as to an error of law. The failure to accord the applicant procedural fairness is said to have arisen in the failure of the Tribunal member to put to the applicant country information it had before it, namely the material referred to in paragraph 1(e) of the substituted application for review, that being the report of the Washington Post of 20 June 2002 and a BBC report of 24 June 2002. Such material, it was conceded, came into the possession of the Tribunal subsequent to the hearing. The Tribunal however did not include such report in the reports it relied upon and accepted as authoritative as to the interim government.

11. The amended application filed by the applicant named the Tribunal as the first named respondent. Section 479 of the Migration Act 1958 (Cth) provides that the parties to a review of a privative clause decision resulting from an application referred to in subsection 477 (as this is) are the Minister, the applicant, the person the subject of the decision in some cases, or a person prescribed by the Regulations. Accordingly, the Minister is the proper respondent and with the consent of both parties I formally removed the Refugee Review Tribunal as the first named respondent in the proceedings.

12. The applicant did not argue that the Tribunal had breached an inviolable limitation. What was argued by the applicant was that there existed bad faith on the part of the Minister rather than on the part of the Tribunal member. In support of that assertion the applicant argued that the Minister deliberately delayed the processing of the applicant's claim. The applicant arrived in September 2001 and lodged his application for a protection visa in November 001. The Tribunal's decision was made in June 2002, a period of some nine months following the arrival of the applicant. The applicant asserts that between September 2001 when the applicant arrived and November when the application was made he was held in segregated detention and denied access to an adviser. The applicant argued that there was a two month period of delay at that time and that his application should have been lodged upon arrival and processed promptly.

13. Further, the applicant asserts that he was denied access to communications because conditions in detention did not allow for the applicant to communicate with, or have access to, the media or media reports and/or visitors and/or communications from the outside.

14. The submissions made by the applicant in the proceeding before me alleged bad faith on the part of the Minister and not the decision maker. No argument was put by the applicant as to the Tribunal member acting with a lack of bona fides. No assertion was made by the applicant of a failure to attend properly to the powers given to the Tribunal member in the approach taken by the Tribunal member.

15. With respect to the submissions as to delay, the process took a period of approximately seven months from the application being made in November to the decision of the Tribunal. The time taken between the decision of the delegate in April to the decision by the Tribunal was approximately two months and there were extensive written submissions received on the part of the applicant and a hearing. This is not an unusual delay in the court system. There is no evidence of any deliberate delay in the processing of this particular application either now or in the hearing before the Tribunal.

16. The law declared by the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228 is that failure to afford natural justice on its own does not enable review having regard to s.474 of the Migration Act 1958 (Cth). There is nothing in the submissions made this day nor on the material before me to suggest that there was anything on the part of the decision-maker which could amount to a lack of bona fides.

17. There was no factual evidence before the Tribunal of delay on the part of the Minister as alleged by the applicant and in particular as alleged in paragraph 2(c) of the substituted application for order of review nor of a lack of opportunity for the applicant to put his case properly before the Tribunal. The Migration Act provides that a person who is an unlawful non-citizen shall be detained. During the period of the applicant's detention he was represented by migration agents AMPI and Craddock Newman, lawyers and by Amnesty International.

18. It is not for this Court to review the merits of the Tribunal's decision nor to substitute for the Tribunal's views of the evidence before it, this Court's views. This Court is to determine whether the Tribunal exercised the jurisdiction given to it and did so in a bona fide manner. The applicant does not assert that the Tribunal member failed to act in good faith and no question of that nature arises on the record. It cannot be said that the decision of the Tribunal is unrelated to the subject matter of the Act nor that it was not reasonably capable of being referred to the power under which it was made. There is no assertion of, and nor do I find, a breach of an `inviolable limitation'. The Tribunal reviewed the decision as required by s.414 of the Migration Act and held that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and thus did not meet the criterion for a protection visa.

19. The operation of s.474 must lead to the application being dismissed. The decision of the Tribunal is a privative clause decision within the meaning of s.474(1) of the Migration Act 1958 (Cth). Provided inviolable limitations are not infringed and the three "Hickman" provisos are satisfied, s.474 expands the authority and powers of the Tribunal[1]. The effect is to render its decision lawful notwithstanding irregularities that would otherwise have constituted jurisdictional error.

20. The applicant's submission that the Minister has acted in bad faith is entirely without merit and lacking in any factual basis whatsoever. The comments of the Full Court in FCAS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 397 at (19) are apt and referred to in the respondent's supplementary submissions.

I include them in these reasons by way of reminder to the applicant's advocate.

An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228 at 107 to 108. It is no less serious if it said to arise from conduct of the type discussed by von Doussa J in SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs. While members of the legal profession representing disappointment applicants for protection visas may often act for reasons of high principle, and on many occasions pro bono, that is no warrant for making the serious allegation if it not justified on the material. Because bad faith is now one of the few grounds of invalidity in respect of which s.474 does not prevent judicial review, there may be a temptation to attach that label to a wide range of alleged errors of fact and law or to claim that because the decision maker made so many alleged errors the only explanation is that he or she was acting in bad faith. There may be an attempt, as in the present case, to redefine the test in a way which eases the task of the applicant by introducing euphemisms such as 'the narrow definition of bad faith'. Ordinarily such creative advocacy may be harmless enough. But because of the nature of the allegation of bad faith, serious questions of professional ethics arise. It should be clearly understood that an allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so.

21. The Tribunal's decision depended entirely on findings of fact which were within the province of the Tribunal to determine. I can find no error of the Tribunal encompassed within the Hickman principles nor any failure of the Tribunal to comply with an inviolable condition.

22. In the circumstances of this case, s.474(1) of the Migration Act 1958 (Cth) must be applied and the application is dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Hartnett FM